Justices of the United States Supreme Court write their official opinions with utmost care,
particularly with regard to their choice of language. Diction is probably more deliberate in the
Court than in any other enterprise relying on written communication.

With that reality in mind, I’ve conducted an empirical exercise that focuses on how
Supreme Court justices describe classes of litigants. I use a measurement that I call a “preferred-reference ratio.”

As an introduction to the concept, consider the evolution of diction in how the modern
Court has referred to African-Americans. In the 1960s, the justices’ exclusive term of reference
was “Negro” or its plural. For instance, “Negro(es)” appears 31 times in the combined opinions
of Heart of Atlanta Motel v. United States and Katzenbach v. McClung (the 1964 companion
cases upholding the constitutionality of the Civil Rights Act of 1964), while “black” isn’t there
once.

Two decades later, however, the Court changed. The last justice writing for the Court
who used “Negro” as his or her own (i.e., not in case citations or quotations from books, articles,
etc.) was Justice Harry Blackmun in Cleavinger v. Saxner (1985).

Today, “black” and “African-American” are the exclusive references. In the opinions of
Grutter v. Bollinger (the 2003 decision approving of universities’ use of racial preferences in
developing a racially diverse student body), for example, the former term arises 42 times and the
latter, 15. That produces a ratio of 15/42, or .357, for “African-American” to “black.” (I grant
that one case is a small sample, but Grutter is long enough – 25,000 words – to be reasonably
representative.)

I call the ratio “preferred reference” because one of the terms is the frame of reference
generally selected by the group at issue. So for the race example, “African-American” is
preferred over “black” for self-identification. (I assert this with eleven years of classroom
observation, teaching at an urban public university whose student population is at least one-third
African-American. Undoubtedly, there’s other empirical evidence addressing this
point. Since the race example here is only illustrative, however, the accuracy
of my observation about the preference of “African-American” isn’t a central theme
of this essay.) Relying on Grutter as a sample, then, I conclude that justices use the
preferred reference about 26 percent of the time (i.e., 15 preferred uses among 57 total, or .263).

Now I turn to the justices’ use of “homosexual” and “gay and lesbian” in their official
opinions. The Supreme Court has decided four appeals of major importance to gay and lesbian
Americans since Justice Antonin Scalia joined that bench in 1988: Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston (1995), Romer v. Evans (1996), Boy Scouts of America v.
Dale (2000), and Lawrence v. Texas (2003). Hurley recognized a First Amendment right of the
sponsors of Boston’s annual Saint Patrick’s Day Parade to exclude a gay-lesbian-bisexual
organization’s marching under its own banner in the parade, despite Massachusetts’ public
accommodations law that prohibits discrimination on the basis of sexual orientation. Romer held
that a state constitutional amendment prohibiting the inclusion of sexual orientation in municipal
antidiscrimination ordinances was unconstitutional. Dale stated that the First Amendment
protected the Boy Scouts’ decision to discharge a gay man in New Jersey as a Scout leader,
despite a New Jersey law forbidding discrimination on the basis of sexual orientation. Finally,
Lawrence struck down all state consensual sodomy laws as unconstitutional and overruled
Bowers v. Hardwick (1986).

In Hurley, Romer, Dale, and Lawrence, I count 149 references to “homosexual(s)” or
“homosexuality” and 36 to “gay” or “lesbian” among the opinions in those cases by Justices
Anthony Kennedy, Sandra Day O’Connor, William Rehnquist, David Souter, John Paul Stevens,
and Clarence Thomas. (I counted each mention in the opinions of the phrases “gay and lesbian”
or “lesbian and gay” as one reference, not two separate ones.) Thus, the preferred-reference ratio
of “gay and lesbian” to “homosexual” for all justices with the exception of Justice Scalia is
36/149, or .242. Hence, all justices except Justice Scalia use the preferred term in this category
about 19 percent of the time.

In contrast, in his two relevant opinions (dissents in Romer and Lawrence) in the
Supreme Court’s gay rights jurisprudence since 1988, Justice Scalia uses “homosexual(s)” or
“homosexuality” as his own 109 times, while “gay and lesbian” just once (at the end of his
second footnote in Lawrence). (Indeed, I’d wager that the footnote reference was not intentional
by Justice Scalia, but rather the product of a law clerk that wasn’t caught by the Justice himself,
because Justice Scalia otherwise scrupulous puts quotation marks around “gay.”) Hence, Justice
Scalia has used the term of identification preferred by gay people themselves less than one
percent (.009) of the time among 110 occasions in which he had reason to make a reference.

For a contrast with another ideologically conservative justice, Chief Justice Rehnquist’s
majority opinion in Dale has a preferred-reference ratio of 6/23, or .261. As another comparison,
consider the three dissenting opinions in Goodridge v. Department of Public Health, the 2003
ruling by the Massachusetts Supreme Judicial Court declaring that the state’s conferral of civil
marriage only on opposite-sex couples violated the Massachusetts Constitution. One can
reasonably believe in the fidelity of those three dissenting state justices’ allegiance to the legal
and constitutional arguments opposing what the Goodridge majority did to sanction same-sex
marriage. Moreover, one can sensibly assume that Justice Scalia would approve of those
dissents. Yet the preferred-reference ratio for the three Goodridge dissents is 7/7, or 1.00 – a rate
more than one hundred times greater than Justice Scalia’s.

Accordingly, there is a remarkable 27-fold difference in preferred-reference ratios for
sexual orientation between Justice Scalia and his Supreme Court colleagues (Justices Rehnquist
and Thomas included).

Now you may ask two reasonable questions. What evidence is there that “gay and
lesbian” is indeed the preferred reference in the relevant community? And assuming there is
such evidence, was Justice Scalia familiar with it?

An absolute answer to the first question in nearly impossible to determine as an empirical
matter, because the entire relevant population cannot be observed effectively, as Riggle and
Tadlock (1999) explain:

The most difficult part of research directly investigating gays and lesbians
is identifying lesbians and gays. The gay and lesbian population is “invisible.”
Whether a researcher meets someone face to face, makes phone contact, or gives
out anonymous confidential questionnaires, that researcher remains at the mercy
of the participant to self-identify as lesbian or gay.

However, substantial collateral evidence of the preference exists to serve as a proxy for,
say, a comprehensive national survey of the country’s lesbian and gay population.

An excellent reflection of American cultural, political, and social communities are the
interest groups and other organizations that serve them. Such groups are usually utterly
dependent on the financial support of their targeted populations and can’t survive without their
approval.

So what names do groups within the homosexual/gay/lesbian community use to attract
dues-paying members and other financial contributors? Do they choose “homosexual” or “gay
and lesbian” to market their services to that community?

I’ve compiled a partial list of such national organizations as an appendix at the end of this
essay. (Adding state and local groups would increase the list by many fold.) Judge for yourself
what the answer to the question is. Indeed, I believe that there’s about as much affinity within
the lesbian and gay community for “homosexual” and “homosexuality” as descriptive terms as
there is today in the African-American community for “Negro.”

Moreover, such labels make a difference. For example, in May
2005, the Gallup Organization
found, in a split-sample experiment testing alternative
terms for referencing lesbians and gay men, that the percentage of
Americans saying that this population should be hired as high school and
elementary teachers was nine to ten points higher (71 versus 62 percent for high
school, 64 versus 54 percent for elementary) when the question was asked about
“gays and lesbians” rather than “homosexuals.”

With regard to
my second question above (concerning Justice Scalia’s knowledge of the gay and
lesbian community’s self-identification preference), let’s assume, for the sake of argument, that
Justice Scalia had virtually no prior knowledge of that preference before his participation in the
Supreme Court’s gay rights decisions starting with Hurley in 1995.

The official reports of the Court reveal that these organizations filed legal briefs with the
justices in Hurley, Romer, Dale, and Lawrence:

Gay & Lesbian Advocates & Defenders

The Gay & Lesbian Alliance against Defamation

The Gay and Lesbian Lawyers Association of South Florida

Gay and Lesbian Lawyers of Philadelphia

The Gay, Lesbian and Straight Education Network

Gays and Lesbians for Individual Liberty

The Lesbian and Gay Bar Association of Chicago

The Lesbian and Gay Law Association of Greater New York

The Lesbian and Gay Lawyers Association of Los Angeles

The Mennonite Council for Lesbian and Gay Concerns

The National Center for Lesbian Rights

The National Gay & Lesbian Task Force

The National Lesbian and Gay Law Association

Parents, Families & Friends of Lesbians & Gays

Presbyterians for Lesbian & Gay Concerns

The United Church Coalition for Lesbian & Gay Concerns

United Methodists for Gay, Lesbian and Bisexual Concerns

The World Congress of Gay and Lesbian Jewish Organizations

Whereas, not one group with “homosexual” in its name filed a brief in those cases.

In other words, Justice Scalia had good reason to know that every one of at least 18
organizations advocating on behalf of the attentive community in the appeals before the Court
preferred the use of “gay” and “lesbian” as identifying terms.

Don’t those facts alone inform a dispassionate observer that the community of interest
with which he or she is dealing prefers “gay and lesbian” as a descriptive and not “homosexual”?
Yet Justice Scalia still gave the latter the nod 109 out of 110 times when he needed to make
reference to that community in his Romer and Lawrence dissents.

Moreover, the reason for Justice Scalia’s inflexible use of
“homosexual” and “homosexuality” doesn’t lie with lack of imagination or
linguistic capacity. Indeed, the Justice is a gifted wordsmith. Consider the
examples of his verbal prowess highlighted in these quotations:

As for the
second question, whether the statute before us deprives the President of
exclusive control over that quintessentially executive activity: The Court does
not, and could not possibly, assert that it does not. That is indeed the whole
object of the statute. Instead, the Court points out that the President, through
his Attorney General, has at least some control. That concession is alone
enough to invalidate the statute, but I cannot refrain from pointing out that
the Court greatly exaggerates the extent of that “some” Presidential control.
“Most importan[t]” among these controls, the Court asserts, is the Attorney
General’s “power to remove the counsel for ‘good cause.’”
This is somewhat like referring to shackles as
an effective means of locomotion.

From
Morrison v. Olson (1988)

It was an
arguable question today whether §188.029 of the Missouri law contravened this
Court’s understanding of Roe v. Wade, and I would have examined Roe
rather than examining the contravention. Given the Court's newly contracted
abstemiousness, what will it take, one must wonder, to permit us to reach that
fundamental question? The result of our vote today is that we will not
reconsider that prior opinion, even if most of the Justices think it is wrong,
unless we have before us a statute that in fact contradicts it – and even then
(under our newly discovered "no broader than necessary" requirement) only minor
problematical aspects of Roe will be reconsidered, unless one expects
state legislatures to adopt provisions whose compliance with Roe cannot
even be argued with a straight face. It thus
appears that the mansion of constitutionalized abortion law, constructed
overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and
never entirely brought down, no matter how wrong it may be.

From
Webster v. Reproductive Health Services (1989)

Thus, “same-sex intimacy,” for example, as an alternative
expression for “homosexual sodomy” ought not be an undue linguistic hurdle for
Justice Scalia. All the same, he uses “homosexual sodomy” 14 times in the
Lawrence dissent without variation. Interestingly, a federal judge recently
stated that, “[the] use [of 'homosexual sodomy'] is ill-advised and outdated as
well. As I see it, the term 'homosexual sodomy' is pejorative. It should be
scrubbed from court decisions in the future.” (Muth v. Frank, U.S. Court
of Appeals, Seventh Circuit, 2005.)

* * *

Compared with that of both his colleagues on the Supreme
Court and the dissenting justices in Goodridge, Justice Scalia’s behavior
on this issue of respect for a litigant class is an extreme outlier.

Admittedly, evidence of personal hostility toward a group is difficult to observe at a
distance. What I offer here is circumstantial and subject to interpretation.

Nonetheless, I do believe a reasonable inference of antigay animus by Justice Scalia can
be made from these data.

Update: Even a 77-Year-Old
Supreme Court Justice Can Evolve

Justice
Scalia's dissent inUnited
States v. Windsorcriticizes
the majority opinion for imputing that the congressional passage of the Defense
of Marriage Act was motivated,inter
alia, by an intention "to brand gay people as 'unworthy.'"

That's right. As of 2013, Justice Scalia no longer refers to lesbians and gay
men exclusively as "homosexuals." In fact, hisWindsoropinion
is filled with references to "same-sex." Apparently, he now sometimes thinks
that gay men and lesbians are, well, people.

Riggle, Ellen D. B., and Barry L. Tadlock. 1999. “Gays and Lesbians in the Democratic
Process: Past, Present, and Future.” In Ellen D. B. Riggle and Barry L. Tadlock (eds.). Gays and
Lesbians in the Democratic Process: Public Policy, Public Opinion, and Political
Representation. New York: Columbia University Press.

Appendix

A Partial List of National Interest Groups and Other Organizations (not otherwise listed in the
essay above) Within the Homosexual/Gay/Lesbian Community:

Affirmation: Gay & Lesbian Mormons

The Association of Gay & Lesbian Psychiatrists

Astraea Lesbian Foundation for Justice

The Center for Lesbian and Gay Studies, City University of New York

The Committee on Lesbian and Gay History, American Historical Association

The Federation of Gay Games

Funders for Lesbian and Gay Issues

The Gay & Lesbian Association of Choruses

The Gay & Lesbian Medical Association

The Gay & Lesbian National Hotline

The Gay & Lesbian Victory Fund

The Gay Men’s Health Crisis

The Gay Officers Action League

The Gay Realty Network

The Homosexual Information Center (established 1965)

The Institute for Gay and Lesbian Strategic Studies

The International Gay Bowling Organization

The International Gay Rodeo Association

The Lesbian & Gay Band Association

The Lesbian & Gay Country Music Association

The Lesbian Health Fund

The Lesbian Herstory Archives

The National Association of Catholic Diocesan Lesbian & Gay Ministries

The National Association of Lesbian, Gay, Bisexual & Transgender Community Centers